Commission will Appeal Termination of Pregnancy Ruling

The Court of Appeal did not uphold the Human Rights Commission’s challenge to the law on termination of pregnancy in Northern Ireland. The Commission has now confirmed it will lodge an appeal to the Supreme Court in England following on from the invitation by the Court of Appeal to do this.

Chief Commissioner Les Allamby commented:

“Today at a special meeting of the Human Rights Commission and following legal advice the Commissioners noted the Court of Appeal’s judgment. We first raised this issue in 2013 and remain as concerned today in 2017 that the law on termination of pregnancy as it stands does not protect women and girls right to be free from torture and inhuman and degrading treatment, their right to privacy or their right to freedom from discrimination.

We will continue to seek a change to the law so that women and girls in Northern Ireland have the choice of accessing a termination of pregnancy locally in circumstances of serious malformation of the foetus, rape or incest, without being criminalised for doing so. The Commission will lodge our application for leave to the Supreme Court tomorrow.”

On 29 June 2017, the Court of Appeal did not uphold the Commission’s challenge to the law on termination of pregnancy in Northern Ireland. The three Court of Appeal judges all gave separate judgments. The judges were divided on two specific issues. On the question of whether the Northern Ireland Termination of pregnancy laws breached Article 8 of the European Convention on Human Rights, one judge ruled in favour of the Commission’s argument and two ruled against. In addition, one judged ruled that the common law should be extended to allow termination of pregnancies in certain circumstances beyond the (R v Bourne case), the two other judge disagreed with that ruling. All three judges acknowledged the importance of the legal issue and the need for the Northern Ireland Assembly to resolve this matter.

In November 2015, the Belfast High Court found in the Northern Ireland Human Rights Commission’s favour ruling that the current law in Northern Ireland is incompatible with human rights. In January 2015, both the Department of Justice and Attorney General appealed the judgment. The Commission cross-appealed and re-introduced all of the original grounds it brought before the High Court. The Commission called for the choice of accessing a termination of pregnancy in circumstances of serious malformation of foetus (including fatal foetal abnormality), rape or incest, without being criminalised for doing so, to be made available in Northern Ireland.

Termination of Pregnancy in N.I

Termination of pregnancy is currently available in Northern Ireland if it is necessary to preserve the life of a woman; including where there is a risk of a serious and adverse effect on her physical or mental health which is either long term or permanent. The doctor must be of the opinion that the continuation of the pregnancy will be to make the woman a “physical or mental wreck” (R v. Bourne [1939] KB 687, per Macnaghten J at 694). It is unlawful to perform a termination of pregnancy, under section 58 of the Offences against the Person Act 1861, unless on these grounds. The punishment is life imprisonment for anyone who unlawfully performs a termination.

Who are the parties in the Appeal?

The Northern Ireland Human Rights Commission, the Department of Justice and the Attorney General. Although not parties to the appeal, additional written submissions to the court have been made by Amnesty International, Sarah Ewart, the Society for the Protection of the Unborn Child, the Northern Bishops, Precious Life and Alliance for Choice.

The November 2015 High Court Ruling

The High Court held that Article 8 of the European Convention on Human Rights, the right to family and private life, was breached by the general prohibition of abortions in cases of fatal foetal abnormalities and pregnancies as a consequence of sexual crimes. The High Court did not uphold the Commission’s arguments that Article 3 (freedom from inhuman and degrading treatment) and Article 14 (freedom from discrimination) were breached with regard to accessing terminations in cases of serious malformation of the foetus. The right of the Commission to take the case in its own name was endorsed. The Judgment in this case can be found here.

Why did the Commission take the case in its own name?

Given the significance of the case and the sensitive issues involved, the Northern Ireland Human Rights Commission took the case in its own name. This decision was made to protect women or girls from having to take the case on their own.

How can the Human Rights Commission take cases?

The Northern Ireland Human Rights Commission is able to initiate proceedings in its own name through powers set out in Justice and Security Act (NI) 2007. The Commission, in its own name, has successfully challenged the Adoption (Northern Ireland) Order 1987 on the grounds that it was discriminatory. This means that unmarried couples (same sex and opposite sex) and civil partners can now apply to adopt a child in Northern Ireland.

Has the Commission taken a case in its own name before?

Yes, in the High Court in 2012 and the Court of Appeal in 2013 the Commission successfully challenged the Adoption (Northern Ireland) Order 1987, in its own name. Nonetheless, the Commission’s right to take this case in its own name is being challenged by the Department of Justice and the Attorney General on appeal.

Recent Developments in International Human Rights include:

Human Rights Law has developed alongside the Commission’s case on Termination of Pregnancy Laws in N.I. The Commission has updated the Court of these developments. The United Nations Committee on the Rights of the Child issued its report on the United Kingdom on 9 June 2016. The Committee has called on the UK Government to: decriminalise abortion in Northern Ireland in all circumstances and a review of legislation with a view to ensuring girls’ access to safe abortion and post-abortion care services. Read the UNCRC Concluding Observations here

Case Timeline

From November 2013 the Commission had repeatedly advised the Department of Justice (DOJ) that the existing law violates the human rights of women and girls.

In October 2014 the Department of Justice published a public consultation on proposals to amend the criminal law on abortion to allow for termination of pregnancy in cases of lethal foetal abnormality and sought views on sexual crime.

In December 2014 the Northern Ireland Human Rights Commission initiated legal proceedings against the Department of Justice as a last resort. In the Human Rights Commission’s view, the consultation published by the Department did not commit to making the changes that were necessary in law: the consultation addressed cases of lethal foetal abnormality and did not deal with serious malformation of foetus. The consultation sought public opinion on cases of sexual crime including rape and incest without putting forward proposals to change the law.

In April 2015 the Department of Justice published its summary of responses to the consultation and announced its intention to bring forward proposals to change the law covering fatal foetal abnormality only. However the issue never reached NI Executive agenda.

15-17 June 2015 the Human Rights Commission’s Judicial Review of the law on termination of pregnancy was heard at the High Court. Judgment was reserved at the close of proceedings on 17 June.

30 November 2015 the High Court found in the Commission’s favour ruling that the current law in Northern Ireland is incompatible with human rights.

16 December 2015 the High Court granted a Declaration of Incompatibility (DOI) under the Human Rights Act 1998. This was based on the law prohibiting termination of pregnancy in the cases of fatal foetal abnormalities and sexual crime being a violation of women’s right to personal autonomy under Article 8 of the European Convention on Human Rights.

20-24 June 2016 the Human Rights Commission’s legal challenge to Northern Ireland’s termination of pregnancy laws was heard at the Court of Appeal in Belfast. The Commission cross-appealed and re-introduced all of the original grounds it brought before the High Court in 2015.

February 2017 the Attorney General challenged the powers of the Commission to take this case by referring a number of devolution questions to the Supreme Court. The Supreme Court will hear arguments on this point separately. A date has yet to be set for this.

29 June 2017 the Court of Appeal delivered their judgment in the case.

Human Rights

In forming its view on access to termination of pregnancy services the Commission has considered the full range of internationally accepted human rights standards, including the European Convention on Human Rights, as incorporated by the Human Rights Act 1998 and the treaty obligations of the Council of Europe and the United Nations systems.

Articles 3, 8 and 14 of the European Convention on Human Rights are directly engaged in this case:

Article 3: Freedom from torture and inhuman and degrading treatment or punishment.

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 8: Right to privacy

(1) Everyone has the right for his private and family life, his home and his correspondence.

2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14: Discrimination

1.The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.